C. of A.
(CRI) No.6 of 1983

IN THE
LESOTHO COURT OF APPEAL

In the
Appeal of :

JAMES
SEKALAKA Appellant

And

REX
Respondent

HELD AT
MASERU

Coram :-

MAISELS,
P.

SCHUTZ,
J.A.

VAN
WINSEN, J.A.

JUDGMENT

Van
Winsen, J.A.

The
appellant was charged, together with two co-accused, in the
Magistrate's Court for the District of Leribe with :

1. the
   theft of a cheque form No. 523718, the the property of Barclays Bank

   
   

and

2. the
   crime of fraud in that they represented to the manager of the
   Lesotho Bank, Leribe, that a certain cheque for R7,800 was a
   genuine
   cheque when they knew that it was not a genuine cheque and that as a
   result of such misrepresentation they induced the
   said manager to
   the loss and prejudice of the Lesotho Bank to pay to them a sum of
   R5,200

   
   

At the
close of the Crown case the third of the three accused, Manella
Sekalaka, the wife of the first accused, the present appellant,
was
discharged. The remaining accused, appellant and the second accused,
Pascalis Tsoanamatsie were convicted on both counts.

2

Appellant
and the second accused were each sentenced on count 1 to a fine of
R30 or 3 months imprisonment suspended for 3 years
on condition that
they were not convicted of a similar offence committed during the
period of suspension, and on count 2 to imprisonment
of 30 months.

An appeal
to the High Court by appellant against the conviction was
unsuccessful. With leave of Mofokeng J who had heard the appeal
he
now appeals to this Court against both the convictions and the
sentences. The grounds of appeal are directed - wrongly - at
the
finding of the Judge in the High Court who heard the appeal. This
appeal is required to be directed at the findings of the
trial Court
and not at the judgment of the High Court. This appeal will be dealt
with as required by law.

It
appears that in March or April 1982 the accountant of Barclays Bank,
Maseru, found that a cheque form No. 523718 was missing
from a cheque
book the property of and in the possession of the Bank and that the
counterfoil of the cheque form was blank. It
is of significance that
the missing cheque form followed immediately upon a salary cheque
that had been issued in favour of appellant's
wife - an employee of
the Bank - who had been the third accused in the matter. It was this
cheque form, completed in an amount
of R7,800, made payable to Sello
N. Phafoli and purporting to have been signed by two officials of
Barclays Bank, viz., Messrs
Cummins and Greenwood, that formed the
subject matter of the second count of fraud. From the evidence of
these two officials it
is apparent that their signatures had been
forged. That the cheque was in all respects a forgery is not in
dispute

3

and the
trial Magistrate found that appellant was aware of the fact that it
had been forged. The evidence of Mr. Nkopane Monyane,
the Manager of
the Lesotho Bank, is to the effect that appellant, together with the
second accused, attended at the Lesotho Bank,
Leribe on 5th March
1982. Appellant was well-known to the witness as one who worked for
the Sentry Assurance Company. Appellant
accompanied the second
accused who he introduced as his younger brother by the name
appearing as the payee on the cheque in question.
Appellant was there
to assist his so-called younger brother in opening a banking account
in the latter's name at the Bank. An account
in that name was duly
opened and the cheque for R7,800 deposited therein. Thereafter the
manager allowed the second accused to
draw R5,200 on the account so
opened.

Appellant
failed to deny any part of the above evidence nor was it ever
suggested under cross-examination of the manager by appellant's
legal
representative that the latter had not accompanied the second accused
to the Bank on that occasion. When the second accused
in his
cross-examination of the manager suggested that appellant was not
present on that occasion it was denied by the manager.

The
greater portion of the Heads of Argument of appellant's counsel
consist of numerous criticisms of the judgment of Mofokeng J.
The
argument in this Court, however, was directed to the question of
whether the evidence established that the manager had been
persuaded
to open an account in the name of the second accused on the strength
of the misrepresentations made by the appellant
to him. Counsel
pointed out that the manager had nowhere in his evidence specifically

4

said so.

I have no
doubt that the only reasonable inference that can be drawn from the
facts of this case, looked at in their totality, is
that appellant
was at all relevant times closely involved in a joint undertaking
with the second accused to defraud the bank. What
reason could there
have been for appellant's presence in the bank on the 5th of March
other than to lend verisimilitude to the
second accused's attempt to
pass off a forged cheque as one which supposedly resulted from the
closure of a savings account he
had had with Barclays Bank in
Rustenberg. Without appellant's help there was no way in which second
accused could have succeeded
in his representation that his name
coincided with that of the payee on the cheque. He could have
produced no documents to establish
such a claim. It was only by
appellant, trading on his acquaintance with the manager, that enabled
the second accused to pass himself
off as being the person named as
the payee on the cheque and in addition avoid the necessary
identification which would otherwise
have been a prerequisite to the
opening of an account at the bank. Whether or not appellant was the
originator of the whole scheme
- and his wife's association as an
employee with the bank from which the cheque form was stolen raises
such a suspicion -his conviction
on the fraud count is amply
supported by the uncontradicted evidence of his presence and
activities in the Lesotho Bank on the
5th of March. His use of a
forged cheque to further those aims makes him a party to the theft of
the form which contained the cheque.

In my
view appellant was rightly convicted on both counts and the sentences
fairly fit the respective crimes.

5

L. DE V. VAN WINSEN

Judge of Appeal

I agree

I.A. MAISELS

President

I agree

W.P. SCHUTZ

Judge of Appeal

Delivered
on this 26th day of April 1984 at MASERU

For
Appellant : Mr. Tsotsi

For Crown
: Miss Nku